Robert D. Rubin on Judicial Review & the Religious Right
Date: May 28th, 2017

Prior to the 1980s, conservative evangelical Christians were skeptical of the US federal court system, having suffered a number of setbacks within the Supreme Court involving issues such as education and abortion.  This begins to change in the 1980s as the now organizationally-consolidated Religious Right began a new legal strategy of embracing judicial review and positioning themselves as an aggrieved minority.  Dr. Robert D. Rubin, an independent scholar who earned his Ph.D. at Indiana University, discusses how this change occurred in the legal and social crucible of Mobile, Alabama in the 1980s.  After a bit of background on how Dr. Rubin discovered this topic, we review the religious and political landscape of both the United States, writ large, and the US South, in particular noting important changes such as the Civil Rights Movement and various Supreme Court Decisions (e.g., Epperson v Arkansas) that gave rise to the Religious Right movement.  We then examine two very specific cases that passed through the chambers of Judge Brevard Hand — Jaffree v Board of School Commissioners and Smith v Board of School Commissioners.  The Jaffree case involved an atheist parent who had a problem with a school prayer that his child was being forced to recite in a public school.  The second case involving Douglas Smith took up the issue whether the public school curriculum in Mobile County was advancing the religion of “secular humanism.”  Robert details the dimensions of these cases and notes how Smith v Board saw religious conservatives going on the offensive and employing some of the arguments used to remove prayer from the school to place religion on an even playing field.  Tony then questions Dr. Rubin about the character and judicial philosophy of Brevard Hand.  The conversation includes reflections upon Robert’s various meetings and interviews with Judge Hand, a man who challenges the stereotypes of the “rotund and suspender-wearing judges” often depicted on television.  We also review the justice’s legal philosophy, which emphasized the principles of republican majoritarianism, federalism, and self-reliance.  Tony picks up a whiff of Alexis de Tocqueville in this discussion and asks Robert if he noticed any particular books in Judge Hand’s personal library, to which he gives an interesting and revealing answer that provides insight into the mind of southerners.  (To find out what book it was, you will have to listen to the podcast… or read the links below.)  We close our podcast with Robert’s reflections about what he learned throughout the research process, wherein he learned to see the importance of viewing the world through the eyes of others, and a bit of discussion about his next project that examines the importance of prayer in enhancing civil discourse.  Recorded: May 10, 2017.


 Robert D. Rubin’s LinkedIn page.

Judicial Review and American Conservatism: Christianity, Public Education, and the Federal Courts in the Reagan Era, by Robert Daniel Rubin.

Jaffree v Board of School Commissioners of Mobile County

Smith v Board of School Commissioners of Mobile County

The Mind of the South, by W.J. Cash (mentioned in podcast).


Paul Harvey on Religion in the American South.

Nathanael Snow on the Evangelical Coalition and Public Choice.

James Patterson on MLK, Fulton Sheen, and Jerry Falwell.

Hunter Baker on the Past & Future of the Religious Right.

Jon Shields on Democratic Values and the Christian Right.

David Dixon on Religious Rhetoric and the Civil Rights Movement.

Matthew Franck on Hobby Lobby and Religious Freedom Jurisprudence.

Matthew Franck on Hosana-Tabor and Ministerial Exemptions.

Mark David Hall on Religious Accommodations and the Common Good.

David Cortman on Religious Liberty Updates.

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